In re Paddock’s Estate

Citation299 N.W. 865,68 S.D. 179
Decision Date09 September 1941
Docket Number8411
PartiesIN THE MATTER OF THE ESTATE OF ORRIN PADDOCK, Deceased.
CourtSupreme Court of South Dakota

Appeal from Circuit Court, Clay County, SD

Hon. A. B. Beck, Judge.

#8411–Affirmed.

Andrew S. Bogue, Parker, SD

M. T. Woods, Bailey, Voorhees, Woods & Bottum, Sioux Falls, SD

Attorneys for Appellant.

Everett A. Bogue, Vermillion, SD

Attorney for Respondent.

Opinion filed Sep 9, 1941

RUDOLPH, J.

Orrin Paddock died in Clay County in the year 1928. John N. Thomson, Donald McMurchie, and Erling Bervin, were appointed administrators of the estate. The petitioner, Orrin Paddock, Jr., was an heir of Orrin Paddock, and at the time of the appointment of the administrators was eleven years of age. Donald McMurchie was appointed guardian of this minor heir. Orrin Paddock, Jr., reached his majority on the 19th day of June, 1938. On. July 16th, 1938, a final decree was entered in the Paddock estate. On the 14th day of July, 1939, these present proceedings were commenced, wherein Orrin Paddock, Jr., seeks to have the final decree in the Paddock estate set aside and permission granted to him to file objections to the final report and account of the administrators. After a hearing the county court set aside the final decree and entered its order permitting Orrin Paddock, Jr., to file objections to two certain items of the final account. No rights of bona fide purchasers or incumbrancers are involved. These two items are referred to in the proceedings as the Davis loan and the Bervin loan. An appeal was taken to the circuit court of Clay County, and the circuit court after a hearing entered an order similar, if not identical, to the order entered by the county court, wherein it is ordered that the final decree in the estate be set aside and Orrin Paddock, Jr., be permitted to file objections to the two certain items in the final account. The administrators, after permission granted, appeal to this court from the order of the circuit court.

We think it clear that the county court had jurisdiction to act in the manner in which it did in this proceeding. That is, it is within the jurisdiction of the county court to open up, vacate, or set aside, its final orders or decrees. This court held in the case of In re Stroup’s Estate, 40 SD 37, 166 NW 155, that the county court, at least since the enactment of Chapter 63, Laws of 1909, now SDC 32.0909(13), as a court of general jurisdiction has the same inherent powers over its orders and judgments as is vested in other courts of general jurisdiction, and that the provisions of our present SDC 33.0108 apply to the orders and judgments of the county court. This code provision is, as follows:

“The court may ... in its discretion, and upon such terms as may be just, ... at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect ....”

The court having jurisdiction to act, the only remaining question is whether the court abused the discretion with which it is vested. In our opinion it did not. It is not seriously questioned by the appellants that the showing made by respondent as to the Davis and Bervin loans made them improper investments, if such they may be called, of the trust funds in the hands of the executors. Without detailing the facts, we state that in our opinion the respondent made a prima facie showing in the court below that these two items were of such a nature that the executors should not be entitled to credit therefore in the final account. This proceeding is not, of course, a trial upon the merits,...

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